The state of North Carolina and the North Carolina Farm Bureau are asking the U.S. Supreme Court to strike down news-gathering activities that generally have been afforded First Amendment protection.
(b)(1) An employee who enters the nonpublic areas of an employer’s premises for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and thereafter without authorization captures or removes the employer’s data, paper, records, or any other documents and uses the information to breach the person’s duty of loyalty to the employer.
(b)(2) An employee who intentionally enters the nonpublic areas of an employer’s premises for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and thereafter without authorization records images or sound occurring within an employer’s premises and uses the recording to breach the person’s duty of loyalty to the employer.
North Carolina maintains that the Fourth Circuit of Appeals erred in ruling the PPA does not apply to undercover news-gathering activities.
In People for the Ethical Treatment of Animals, Inc. v. N.C. Farm Bureau Federation, Inc the Fourth Circuit found:
“…while we agree that an employer could freely choose to deny entry to journalists who seek to secretly record its inner workings, it does not follow that a State can create ‘new categories of unprotected speech’ to punish those journalists. The First Amendment limits the government; the government does not limit the First Amendment. Even granting that whole categories of speech can go unprotected, the challenged subsections would nonetheless implicate the First Amendment because they discriminate based on speaker and viewpoint.”
North Carolina begs to differ. The state is demanding that the high court create a new constitutional restriction to free speech – specifically, that information collected via undercover investigations in nonpublic areas are unprotected under the First Amendment.
If the U.S. Supreme Court were to take up the case and rule in favor of North Carolina, the decision would give Big Meat the brass ring it has been seeking for decades: an ironclad ag-gag statute that would allow civil prosecution of undercover media investigations that expose animal-welfare violations and other illegal activity.
When it comes to applying the First Amendment to state ag-gag laws, the federal courts have generally been singing from the same choir book.
In Animal Legal Defense Fund v. Wasden, the Ninth Circuit ruled all recordings are constitutionally protected speech, even those collected on nonpublic property without the property owner’s permission.
And in Animal Defense Fund v. Kelly, the Tenth Circuit invalidated a Kansas law that prohibited taking pictures and videos on private property without owner consent on First Amendment grounds that the law unconstitutionally criminalizes only speech that is critical of animal facilities. The court also acknowledged, though, that one day it might have to specifically decide if recordings collected without consent on private property are protected by the First Amendment.
The U.S. Supreme Court has never accepted an ag-gag case for oral argument. The stakes are high. That’s because North Carolina contends the Property Protection Act is not agriculture specific, but rather is applicable to all businesses: “the law here does not apply to a single subject matter. It therefore does not implicate the questions about viewpoint or content discrimination that may arise when States protect only certain kinds of property.”
It is not hyperbole to suggest that if the Property Protection Act is found constitutional, it would have a chilling effect on all kinds of media undercover investigations. Other states would surely pass new legislation based on a PPA blueprint.
At some point, I would imagine a First Amendment v. ag-gag law case will be ripe for Supreme Court judgment. If and when that day comes I think Big Meat will have to jump an extremely high constitutional hurdle. Certainly exemptions for free speech exist – typically based either on content or the location where the free speech takes place.
But when it comes to the First Amendment, ag-gag laws are often found unconstitutional because they fail a strict scrutiny standard. The standard requires a law to be narrowly tailored to the stated purpose of protecting private property rights.
Ag-gag laws also fail because they are not deemed content-neutral. To pass judicial review, an ag-gag law must regulate speech without reference to the speech’s substance and promote a substantial government interest that could not be achieved as effectively without the law.
High bars indeed. Meanwhile, at least 11 states have attempted or succeeded in passing ag-gag legislation. Eight state ag-gag laws have been found by courts to be either unconstitutional or partially unconstitutional.
The SCOTUS needs to provide clarity in what has become a piece-meal smorgasbord of ag-gag law in conflict with the First Amendment. PETA v North Carolina Farm Bureau is probably as good as any.
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